In re Adoption of Amendments to N.J.A.C. 6 11-8.4 and N.J.A.C. 6 11-8.5

Decided: June 18, 1991.

IN THE MATTER OF THE ADOPTION OF AMENDMENTS TO N.J.A.C. 6:11-8.4 AND N.J.A.C. 6:11-8.5

On appeal from New Jersey State Board of Education.

Judges J.h. Coleman, Dreier, and Ashbey. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

This appeal challenges the New Jersey Department of Education's regulations allocating responsibility for testing of bilingual teaching candidate's foreign language proficiency under the Bilingual Education Act (BEA). N.J.S.A. 18A:35-15 et seq. The challenged regulatory amendments shift the proficiency evaluation from the State to the local school district. We now hold that the regulatory change is valid.

I

In 1975, Governor Brendan Byrne signed BEA into law. According to the Governor's signing message, "the new program [was] designed to ensure equal educational opportunity for all children regardless of their native environment or their fluency in the English language." The State Commissioner of Education and the Chancellor of Higher Education were directed to establish rules and regulations implementing the program. N.J.S.A. 18A:35-23.

Pursuant to this legislative mandate, the Department of Education (DOE)*fn1 initially assumed responsibility of evaluating incoming bilingual teaching candidates for language proficiency. 7 N.J.R. 498(d). The DOE regulations required the candidate to demonstrate a verbal proficiency in English and "one other language used also as a medium of instruction." 7 N.J.R. 402-03. A bilingual teacher candidate's language proficiency was evaluated during a Language Proficiency Interview, which was taped and later evaluated by trained "raters" as to the ability of the candidate to communicate in the foreign language. Upon what was deemed a satisfactory result and where other requirements were met, the DOE would issue a bilingual teacher endorsement, or certification, signifying the candidate's language proficiency.

In early 1986 the State Board voted to review the bilingual test certification requirements. By that time the language proficiency evaluations were conducted by several parties and ultimately by Kean College, which in 1988 notified the DOE that it no longer would conduct such evaluations. A DOE Study Team issued final recommendations for certification standards in June 1988.

After DOE considered the Study Team's report and the problems encountered with the language proficiency evaluation program up to that point, the DOE determined that its evaluation of the teaching candidates language proficiency was unworkable, and in fact, hindered the implementation of the BEA. Consequently, on September 5, 1989, the DOE proposed amending the existing regulations. The proposed regulations were silent as to whether bilingual teaching candidates would have to demonstrate their language proficiency as a prerequisite to teaching in bilingual programs. 21 N.J.R. 2721(a). Hearings on the proposed changes were conducted by the DOE on September 19 and 20, 1989, during which interested parties were afforded an opportunity to express their views on the adoption of the proposed amendments. The proposed amendments were adopted November 28, 1989, effective September 1, 1991. 21 N.J.R. 3937(a). See N.J.A.C. 6:11-8.4(f), and, N.J.A.C. 6:11-8.5(f). This appeal followed the adoption of the amendments.

II

The standard governing appellate review of the DOE's actions requires us to answer three questions:

(1) whether the agency action violates the enabling act's express or implied legislative policies; (2) whether there is substantial evidence in the record to support the findings upon which the agency based application of legislative policy; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors. [Public Serv. Elec. & Gas Co. v. New Jersey Dept. of Envtl. Protection, 101 N.J. 95, 103 (1985)].

Adopted New Rules, N.J.A.C. 11:18, 246 N.J. Super. 109, 122 (App. Div.), certif. den. N.J. (1991). But the presumption of validity attaches only if the regulations are within the authority delegated to the promulgating agency ...

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